Citation Nr: 9908416
Decision Date: 03/26/99 Archive Date: 03/31/99
DOCKET NO. 92-53 706 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
Entitlement to service connection for a lumbar spine
disorder.
Entitlement to service connection for a right knee disorder.
Entitlement to service connection for a left knee disorder.
Entitlement to a disability evaluation in excess of 10
percent for tinea corporis.
Entitlement to a compensable disability evaluation for high
frequency hearing loss.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
R. K. ErkenBrack, Counsel
INTRODUCTION
The veteran served on active duty from February 1972 to
January 1979, and on active duty for training from January to
April 1988. There were additional periods of inactive duty
training from September 1987 to September 1988.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from rating decisions of the Department of Veterans
Affairs (VA) Regional Office (RO) at Montgomery, Alabama. By
the initial rating decision in this case, service connection
was granted for bilateral high frequency hearing loss and
tinea corporis each rated at 0 percent, and service
connection was denied for low back and knee disorders. The
veteran's appeal eventuated in a remand by the Board in
September 1992 for additional medical evidence, potential
workers' compensation/Social Security data, a VA dermatology
examination, and consideration of 38 C.F.R. § 3.324. Due to
additional evidentiary issues raised by the veteran's
representative and the inadequacy of the dermatology
examination conducted in November 1992, the Board remanded
the case again in October 1996 for additional medical
evidence on all the disabilities at issue, verification of
all duty periods, another VA dermatology examination, and a
VA orthopedic rating examination if deemed by the RO to be
warranted. The purposes of that remand have been met.
By rating action in May 1998, the denial of the veteran's
claim was continued except that an increased rating to 10
percent was granted for tinea corporis, effective from
January 1997, the date of the VA dermatology rating
examination directed by the Board's October 1996 remand; the
veteran has continued his appeal on all issues.
While the original statement of the case and supplemental
statements of the case dated to December 1994 included the
issues of entitlement to service connection for low back and
bilateral knee disorders on the basis of the original claims
and appeals that followed, the rating decision and
supplemental statement of the case in May 1998 rephrased the
issues of service connection issues to reflect finality.
This is incorrect; these issues have been on appeal since
1991. Accordingly, the issues are properly designated as
shown, to be decided on the merits, de novo.
FINDINGS OF FACT
1. There is no competent medical evidence that current
disabilities of the lumbar spine, right knee and/or left knee
are of service origin, are related to low back and bilateral
knee symptoms in service, or are otherwise related to
service.
2. All the evidence necessary for an equitable disposition
of the veteran's claims for higher disability evaluations for
tinea corporis and high frequency hearing loss has been
obtained by VA.
3. Prior to and since January 1997, tinea corporis has been
manifested by exfoliation, pruritus and extensive lesions,
but without ulceration, extensive exfoliation, crusting,
systemic or nervous manifestation, or exceptional repugnance.
4. In April 1991 average pure tone thresholds at 1,000,
2,000, 3,000 and 4,400 hertz were 43 decibels in the right
ear and 46 in the left ear, with speech recognition ability
of 96 percent in the right and 92 percent in the left. On
audiological evaluation in April 1998, average pure tone
thresholds were 50 decibels in the right ear and 53 in the
left ear, with speech recognition ability of 76 percent
correct in the right ear and 92 percent in the left ear.
CONCLUSIONS OF LAW
1. The claims for service connection for a lumbar spine
disorder, a right knee disorder and a left knee disorder are
not well grounded. 38 U.S.C.A. § 5107(a) (West 1991).
2. A rating of 30 percent for tinea corporis is warranted.
38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.1,
4.2, 4.7, 4.10, 4.20, 4.118, Diagnostic Codes 7806, 7813
(1998).
3. A compensable rating for high frequency hearing loss is
not warranted. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991);
38 C.F.R. §§ 4.1, 4.2, 4.10, 4.85, 4.86, Diagnostic Code 6100
(1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Factual Background
The service medical records show that in May 1972, the
veteran complained of right leg pain and an X-ray revealed a
stress fracture. In June 1972, it was indicated that the
stress fracture was in the tibial and fibular region. In
October 1972, he reported right leg problems when running,
and the impression was shin splints. In December 1972, it
was noted that X-ray examination of the left knee was within
normal limits and that the veteran was being placed on
limited duty for a week.
In January 1973, the veteran's left knee reportedly had been
swollen for two days but he denied any injury. Examination
was within normal limits. The impression was bruise. In
December 1973, he complained of left lower leg pain for two
days. Tenderness was elicited over the left tibia at the
boot top level. An X-ray showed an endosteal reaction at
this level. The impression was stress fracture.
In May 1976, the veteran suffered blunt trauma to the right
knee when he dropped a 150-pound case of beef on the distal
anterior femoral area. Swelling and decreased flexion were
shown. An X-ray of the right knee was termed negative.
In January 1977, the veteran complained of minor lumbar pain
after lifting an engine from his car. It was at
approximately L1, radiating upward with pressure. Range of
motion was good, with minimal pain. The impression was
minimal lumbar strain. In December 1977, he was seen for low
back pain for two days that was nonradiating. He reportedly
had had a good recovery from the back injury a year
previously. It was noted that there was no precipitating
event such as lifting or trauma, but that he did a lot of
lifting in his work. His gait was antalgic without a limp.
There was direct spinous process tenderness at the deepest
point of the rather marked normal lumbar curve. Straight leg
raising was negative bilaterally. The impression was
recurrent lumbar strain. Later in December 1977, he returned
with complaints of low back pain. He reportedly had not
followed light duty as instructed. Moderately increased
paravertebral muscle tension at L2-3 was shown. Somatic
dysfunction was assessed. In March 1978, he was seen again
for low back pain, which he stated was caused by working.
There was full range of motion with no tenderness. Lower
back strain was assessed. There is no report of examination
for discharge from active duty of record. The service
medical records show that during service the veteran was
noted to have bilateral hearing loss and was treated for
fungal skin rashes, including tinea pedis and tinea corporis.
VA outpatient treatment records show that in November 1980
the veteran was noted to have a history of skin lesions under
the left arm, behind the right knee, and in the groin since
1972. The rash was reported to be pruritic and worse in the
summer. Examination of the skin revealed an erythematous,
maculopapular rash over scaling, dry skin on both feet,
behind the right knee and in the left axilla.
Service medical records show that when the veteran was
examined in September 1987 for reserve enlistment, he denied
having or having had recurrent back pain, trick or locked
knees, and other specified musculoskeletal symptoms. The
spine and lower extremities were noted to be normal on
examination. During active duty for training in April 1988
the veteran was placed on physical profile (restrictions) for
right knee pain and tendonitis.
The veteran was hospitalized at Baptist Medical Centers in
December 1988 and January 1989 after he sustained a back
injury earlier in December 1988 while lifting a tarp at work.
He reportedly felt a popping sensation and was seen at
another medical facility where he was told that he had
sustained a ligamentous injury. A computerized tomogram (CT)
of the lumbar spine revealed a fracture of the inferior
anterior aspect of the L5 vertebral body and possible focal
disc herniation, L5-S1. He complained of numbness of the
right lower extremity. The impression was compression
fracture L5.
B. L. Landers, Jr., M.D., reported in January 1989 that the
veteran had had severe sharp back pain, radiating down the
left leg all the way to the foot, since the December 1988
injury. There were tenderness of the lumbar muscles and
positive straight leg raising on the left. He had decreased
sensation down the entire left leg predominantly over L4-5 on
the left side. A lumbar myelogram was negative. In February
1989, the veteran complained of low back pain going down the
left hip area to about the knee, thought possibly to be due
to a dynamic stenosis or facet syndrome from an injured facet
joint. In May 1989, an MRI of the lumbosacral spine showed
mild degenerative change at L5-S1 and what appeared to be an
old, mild compression fracture at L5. In July 1989,
additional testing was reported as showing no evidence of
herniation or spinal stenosis. An X-ray reportedly showed a
healed fracture of L5. The veteran complained of pain on
back extension. During hospitalization in October 1989 for
intense back pain that had arisen the morning of admission,
it was recorded that he had been receiving workers'
compensation since his December 1988 injury.
Records from Baptist Medical Center Montclair dated in April
1990 show that the veteran was evaluated by a physical
therapist with respect to his functional capacity.
A report of November 1990 by Michael T. Riehl, M.D., reflects
that the veteran was mainly impaired due to mechanical back
strain due to an old compression fracture of L5 in December
1988. It was reported that the initial CT following the
fracture showed very mild focal disc herniation at L5-S1 and
that a lumbar myelogram in March 1990 reportedly showed very
minimal anterior compression at L3.4 and 5. It was also
noted that bridging or anterior osteophyte formation at the
same level was shown. A May 1990 MRI of the lumbar spine
reportedly showed mild degenerative changes at L5-S1. The
veteran complained of low back pain radiating to the legs.
Examination revealed back tenderness from L1 to L5 and a
fungal rash over the abdomen. The impression was failed back
syndrome.
On a VA audiological evaluation in April 1991, pure tone
thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
25
60
75
LEFT
5
25
70
85
Average pure tone thresholds at the above frequencies were 43
decibels in the right ear and 46 decibels in the left.
Speech audiometry revealed speech recognition ability of 96
percent in the right ear and 92 percent in the left ear.
Both external auditory canals and tympanic membranes appeared
essentially normal. The diagnosis was bilateral high
frequency sensorineural type hearing loss, moderate to severe
for the right ear and severe for the left ear.
On a VA orthopedic examination in April 1991, the veteran
gave a history of a back injury in 1976 followed by back pain
and having been told that his facet joints came together.
Reportedly, he had had intermittent back pain up to the time
of another back injury in December 1988 from lifting, which
resulted in the compression fracture of L5. He complained of
severe constant back pain with radiation into the legs . He
also reported severe knee pain that started when he was
running on National Guard maneuvers in April 1988. He stated
that his knees had "blown out" and that he now had knee
pain at different times, especially with movement. The
physical examination showed that he walked with a limp,
seeming to favor the left side. Lumbar paraspinal muscle
tenderness was elicited on percussion. Range of motion of
the back appeared to be fairly normal. Range of motion of
the knees was normal, although the veteran complained of pain
on left knee motion. Straight leg raising was positive at
about 50 degrees on the left. The impressions were
degenerative joint disease of the lumbosacral spine, left L5
radiculopathy, and mild degenerative joint disease of the
knees, bilaterally. Nerve conduction velocity findings were
normal in the tested nerves in the left lower extremity. He
was unavailable for electromyography (EMG) and this was to be
rescheduled. It was concluded that there was no
eletrophysiological evidence of neuropathy in the left lower
extremity but that lumbar radiculopathy could not be
confirmed or ruled out without the EMG study. X-ray
examination of the knees revealed no skeletal abnormality.
X-ray examination of the lumbosacral spine showed minimal
anterior osteophyte formation with well preserved disc
spaces.
On a VA skin examination in April 1991, the veteran gave a
history of recurrent problems with fungal infections of the
skin and feet since 1973. Physical examination revealed
sharply bordered erythematous scaling plaques over the trunk
and lower extremities, and involvement of the feet on the
plantar surface in a moccasin distribution. He had no
specific nail or facial involvement. There was buttock
involvement. Potassium hydroxide (KOH) testing was positive
for dermatophytes. The assessment was tinea corporis
involving approximately 40 percent of the body surface area
proven by KOH examination. It reportedly was evident by
history that this was not a worsening condition but it was
termed persistent and probably recurrent.
Service medical records for a period of apparent active duty
for training in June 1991 reflect that the veteran was placed
on a physical profile restricting him from running, jumping,
marching and physical training for 2 1/ 2 weeks due to
residuals of the broken L5 vertebra and a skin rash, the
latter of which was termed in line of duty. The rash was
described as occasionally pruritic, erythematous, dry and
scaly. Symptomatic discogenic disease, L5-S1 was recorded.
VA outpatient treatment records show that in August 1991 the
veteran had a rash all over, needed a referral for a hearing
test, and needed pain medication for arthritis. He was noted
to have a scaling rash over much of his body. The diagnosis
was tinea corporis. He was seen for low back pain in
September 1991.
The veteran had a personal hearing before a hearing officer
at the RO in November 1991. He testified that when his skin
condition started in 1973 it covered just the area of a
quarter on his body, but by 1979 it covered 40 to 50 percent
of his body including his feet, legs, thighs, back, buttocks,
stomach, chest, neck and parts of his face. T. at 3-4. He
stated that some of the skin lesions were running. His skin
condition reportedly never got better and sometimes was a
whole lot worse. T. at 5. He testified that his skin itched
and that scratching made it worse. It also was scaly with
flakes and pimple-like lesions that popped open and ran,
especially in warm weather, and lasted from 7 to 15 days. T.
at 6. He testified that his toenails became infected and
popped open, draining a green and milky fluid.
The veteran further testified that he first hurt his back
during active service when he tried to lift a jeep with
another soldier and his back wrenched or snapped. He went to
sick call and was put on 3 or 4 days of bed rest, but had
continuing back problems T. at 8. He recalled having muscle
spasms in his back during active service after the lifting
incident. He testified that he never sought treatment
following active service because he did not have time and had
to make a living. He reportedly had had jobs in heavy
construction, carpentry, maintenance, trucking and chicken
farming. He recalled that he had broken his back in 1988.
T. at 9. He testified that he had degeneration of joints
prior to the compression fracture of L5. He stated that both
of his knees hurt in March 1972 in boot camp and they
continued to be a problem until 1979, when he stopped a lot
of heavy physical training. He reportedly had been seen for
his knees during active service and was given elastic knee
braces to wear and told to stop physical training. He
related that if he did a lot of physical things, like walking
and carrying things, they would flare-up and that during
active service his knees swelled and hurt. T. at 12.
VA outpatient treatment records dated in February 1992 show
that an abdominal rash was "still present." In July 1992,
the veteran described a chronic fungal infection for over 20
years with pruritic lesions involving the trunk, groin,
buttocks, legs and feet. There were scaling, pink plaques
with serpiginous borders on the abdomen, lower back, and
legs. Diffuse scaling was present over the soles of the feet
and on the interdigital webs. Tinea corporis was assessed.
In August 1992, he was seen for knee pain and swelling. He
also showed an extensive area of red scaly skin with clearly
demarcated erythematous raised borders which covered the
abdomen, lower back, buttocks, legs and feet. The toenails
were affected with an extensive accumulation of debris. The
diagnosis was tinea corporis.
On a November 1992 VA skin examination, the veteran
complained of a fungus infection of the skin affecting his
belt line, chest, neck, buttocks and groin. He stated that
heat and humidity made the condition worse with pruritus.
The objective findings included erythematous, scaly plaques,
some with central clearing, involving the right groin
primarily. He also had erythematous scaly active border
plaques involving the right buttock and eczematous patches on
both hips. In the beard area, he had inflammatory papules at
the location of ingrown hairs. KOH testing of the scaly
lesions of the buttocks and groin was positive for
dermatophytes. The diagnoses were tinea corporis and
pseudofolliculitis barbae.
In February 1993, Harry Goodall, M.D., reported that he had
first seen the veteran in September 1992 and had last seen
him in February 1993 and that the veteran had chronic low
back pain with associated pain and numbness of the right leg,
which limited him in possible work.
On a VA skin examination in January 1997, the veteran
complained of a pruritic rash affecting his groin, thighs,
buttocks, and occasionally extending up onto the abdomen,
beginning in 1973. He reportedly had developed an extensive
chronic rash, which was very pruritic and, when he scratched,
it bled. He also reported getting "circles" that broke out
on his cheeks and bled when he shaved. He stated that his
rash was worse in the spring, summer and fall. The objective
findings were extensive areas of red scaling patches with
serpiginous advancing borders and some papular lesions within
the borders. There was no bleeding or oozing of the lesions.
The rash involved the left inner thigh to a marked degree,
the right inner thigh to a mild degree, and the inguinal
areas, and it extended posteriorly to the buttocks. There
were a few facial telangiectases as well as a 4 by 7
millimeter square depressed scar near the angle of the left
mandible. The diagnoses were extensive tinea corporis to be
treated further, and scar and telangiectases of the face.
The scar was geometric in shape, which was noted to usually
indicate a mechanical injury rather than a pathophysiologic
process. There was no evidence of pseudofolliculitis barbae.
On a VA audiological examination in April 1998, the veteran's
complaints and history of noise exposure were noted. The
examiner stated that an audiogram in 1991 had been reviewed
and suggested severe, high frequency, sensorineural hearing
loss bilaterally. The veteran had the greatest difficulty
understanding speech in all situations. Tympanometry
suggested normal middle ear pressure and mobility
bilaterally.
On the VA audiological evaluation in April 1998, pure tone
thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
20
35
65
80
LEFT
15
30
75
90
Pure tone threshold averages were 50 decibels on the right
and 53 decibels on the left. Speech audiometry revealed
speech recognition ability of 76 percent in the right ear and
of 92 percent in the left ear. The final diagnoses were mild
to severe sensorineural hearing loss bilaterally. The
recommendations included an ear, nose and throat evaluation
due to decreased speech discrimination, yearly audiological
assessments, hearing aid evaluation (then in progress) and
ear protection if exposed to noise.
Legal Criteria
The threshold question that must be resolved with regard to a
claim is whether the veteran has presented evidence of a
well-grounded claim. See 38 U.S.C.A. § 5107(a); Murphy v.
Derwinski, 1 Vet. App. 78, 81 (1990). A well-grounded claim
is a plausible claim that is meritorious on its own or
capable of substantiation. See Murphy, 1 Vet. App. at 81.
An allegation that a disorder is service connected is not
sufficient; the veteran must submit evidence in support of a
claim that would "justify a belief by a fair and impartial
individual that the claim is plausible." See 38 U.S.C.A.
§ 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992).
The quality and quantity of the evidence required to meet
this statutory burden of necessity will depend upon the issue
presented by the claim. Grottveit v. Brown, 5 Vet. App. 91,
92-93 (1993).
In order for a claim to be well grounded, there must be
competent evidence of a current disability in the form of a
medical diagnosis, of incurrence or aggravation of a disease
or injury in service in the form of lay or medical evidence,
and of a nexus between the in-service injury or disease and
the current disability in the form of medical evidence.
Caluza v. Brown, 7 Vet. App. 498 (1995).
Where the determinant issue involves a question of medical
diagnosis or medical causation, competent medical evidence to
the effect that the claim is plausible or possible is
required to establish a well-grounded claim. Grottveit v.
Brown, 5 Vet. App. 91, 93 (1993). Although the veteran is
competent to testify as to his in-service experiences and
symptoms, where the determinative issue involves a question
of medical diagnosis or causation, only individuals
possessing specialized medical training and knowledge are
competent to render such an opinion. Espiritu v. Derwinski,
2 Vet. App. 492 (1992). The evidence does not reflect that
the veteran currently possesses a recognized degree of
medical knowledge that would render his opinions on medical
diagnoses or causation competent. Lay assertions of medical
causation will not suffice initially to establish a
plausible, well-grounded claim under 38 U.S.C.A. § 5107(a).
Grottveit v. Brown, 5 Vet. App. 91 (1993). If no cognizable
evidence is submitted to support a claim, the claim cannot be
well grounded. Id.
Service connection may be granted where the evidence shows
that a particular injury or disease resulting in chronic
disability was incurred in service, or, if pre-existing
service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131
(West 1991); 38 C.F.R. § 3.303 (1998). There are some
disabilities, including arthritis, where service connection
may be presumed if the disorder is manifested to a degree of
10 percent within one year of separation from service. 38
U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991 and Supp.
1998); 38 C.F.R. §§ 3.307, 3.309 (1998). When a disability
is not initially manifested during service or within an
applicable presumptive period, "direct" service connection
may be granted for any disease diagnosed after discharge,
when all the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d).
The chronicity provision of 38 C.F.R. § 3.303(b) is
applicable where evidence, regardless of its date, shows that
a veteran had a chronic condition in service and still has
such condition. Such evidence must be medical unless it
relates to a condition as to which lay observation is
competent. If the chronicity provision is not applicable, a
claim may still be well grounded if (1) the condition is
observed during service, (2) continuity of symptomatology is
demonstrated thereafter and (3) competent evidence relates
the present condition to that symptomatology. Savage v.
Gober, 10 Vet. App. 489 (1997); see also Grottveit at 93.
Where there is a chronic disease shown as such in service,
subsequent manifestations of the same chronic disease at any
later date, however remote, are service connected, unless
clearly attributable to intercurrent causes. 38 C.F.R.
§ 3.303(b). To show chronic disease in service there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time. When the disease identity
is established, there is no requirement of evidentiary
showing of continuity. Continuity of symptomatology is
required where the condition noted during service or in the
presumptive period is not shown to be chronic or where the
diagnosis of chronicity may be legitimately questioned. When
the fact of chronicity in service is not adequately
supported, then a showing of continuity after discharge is
required to support the claim. 38 C.F.R. § 3.303(b).
Under the applicable criteria, disability evaluations are
determined by the application of a schedule of ratings which
is based on average impairment of earning capacity. 38
U.S.C.A. § 1155; 38 C.F.R. Part 4. The Board attempts to
determine the extent to which the veteran's service-connected
disability adversely affects his ability to function under
the ordinary conditions of daily life, and the assigned
rating is based, as far as practicable, upon the average
impairment of earning capacity in civil occupations. 38
U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10
In Fenderson v. West, No. 96-947 (U.S. Vet. App. Jan. 20,
1999), it was held that evidence to be considered in the
appeal of an initial assignment of a rating disability was
not limited to that reflecting the then current severity of
the disorder. Cf. Francisco v. Brown, 7 Vet. App. 55, 58
(1994). In that decision, the U.S. Court of Appeals for
Veterans Claims (Court) also discussed the concept of the
"staging" of ratings, finding that, in cases where an
initially assigned disability evaluation has been disagreed
with, it was possible for a veteran to be awarded separate
percentage evaluations for separate periods based on the
facts found during the appeal period. Fenderson v. West,
slip op. at 18.
Separate diagnostic codes identify the various disabilities.
In determining the disability evaluation, VA has a duty to
acknowledge and consider all regulations which are
potentially applicable based upon the assertions and issues
raised in the record and to explain the reasons and bases for
its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589
(1991).
These regulations include 38 C.F.R. §§ 4.1, 4.2 (1998), which
require the evaluation of the complete medical history of the
claimant's condition. These regulations operate to protect
claimants against adverse decisions based on a single,
incomplete, or inaccurate report, and to enable VA to make a
more precise evaluation of the level of the disability and of
any changes in the condition. Schafrath, 1 Vet. App. at 593-
94.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
for that rating. Otherwise the lower rating will be
assigned. 38 C.F.R. § 4.7.
When an unlisted condition is encountered it will be
permissible to rate under a closely related disease or injury
in which not only the functions affected, but the anatomical
localization and symptomatology are closely analogous.
Conjectural analogies will be avoided, as will the use of
analogous ratings for conditions of doubtful diagnosis, or
for those not fully supported by clinical and laboratory
findings. Nor will ratings assigned to organic diseases and
injuries be assigned by analogy to conditions of functional
origin. 38 C.F.R. § 4.20.
Under Diagnostic Code 7813, dermatophytosis is rated as for
eczema, dependent upon location, extent, and repugnant or
otherwise disabling character of manifestations. 38 C.F.R.
§ 4.118, Diagnostic Code 7813.
Under Diagnostic Code 7806, a 0 percent rating is assigned
for eczema with slight, if any, exfoliation, exudation or
itching, if on a nonexposed surface or small area. A 10
percent rating is provided for exfoliation, exudation or
itching, involving an exposed surface or extensive area. The
next higher rating of 30 percent is warranted for exudation
or constant itching, extensive lesions, or marked
disfigurement. A 50 percent rating, the highest rating
assignable under this code, is for ulceration or extensive
exfoliation or crusting, and systemic or nervous
manifestations, or exceptional repugnance. 38 C.F.R.
§ 4.118, Diagnostic Code 7806.
Evaluations of bilateral defective hearing range from
noncompensable to 100 percent based on organic impairment of
hearing acuity as noted by the results of controlled speech
discrimination tests, together with the average hearing
threshold levels as measured by pure tone audiometry tests in
the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per
second. The severity of hearing loss disability is
ascertained, for VA rating purposes, by application of the
criteria set forth at 38 C.F.R. § 4.85 of VA's Schedule for
Rating Disabilities (Rating Schedule). Under these criteria,
the degree of disability for bilateral hearing loss is
determined by application of a rating schedule that
establishes 11 auditory acuity levels, ranging from Level I
(for essentially normal acuity) through Level XI (for
profound deafness). 38 U.S.C.A. § 1155; 38 C.F.R. § 4.85,
Diagnostic Codes 6100 through 6110 (1997). As noted by the
Court, the assignment of disability ratings in hearing cases
is derived by a mechanical application of the Rating Schedule
to the numeric designation assigned after audiometric
evaluations are rendered. Lendenmann v. Principi, 3 Vet.
App. 345, 349 (1992).
Furthermore, the Board notes that the regulations state that
the evaluations derived from the schedule are intended to
make proper allowance for improvement by hearing aids. 38
C.F.R. § 4.86.
Analysis
The veteran's claims for service connection for lumbar spine
and bilateral knee disorders are not well grounded for the
reasons detailed below.
The veteran's claims for disability evaluations higher than
10 percent for tinea corporis and 0 percent for bilateral
high frequency hearing loss are well grounded within the
meaning of 38 U.S.C.A. § 5107. A well-grounded claim is a
plausible claim which is meritorious on its own or capable of
substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81
(1990). In general, an allegation of an increased disability
is sufficient to establish a well-grounded claim seeking an
increased rating. Proscelle v. Derwinski, 2 Vet. App. 629
(1992). The Board is satisfied that all relevant facts have
been properly developed regarding these claims and that no
further assistance to the appellant is required in order to
comply with the duty to assist him as mandated by 38 U.S.C.A.
§ 5107.
Service Connection Lumbar Spine Disorder
The service medical records show that the first sign of any
lumbar spine problem was in January 1977, after the veteran
lifted an engine. The impression was lumbar strain. The
symptoms consisted of pain at L1 radiating upward and right
lower lumbar pain and muscle spasm. Recurrent lumbar strain
was reported in December 1977, with the notation that he
lifted a lot in his job. The symptoms on this occasion were
nonradiating pain and direct spinous process tenderness at
the deepest point of the lumbar curve. Later in December
1977, the symptoms were L2-3 muscle tension. On that
occasion, somatic dysfunction was noted. The last inservice
regarding the low back was in March 1978. Even though no
tenderness or other abnormality was objectively found, lower
back strain was diagnosed.
More than 10 years later, in December 1988, the veteran
injured his back lifting a tarp. A CT scan revealed an L5
compression fracture and possible herniated disc, L5-S1. His
symptoms also included right lower extremity numbness.
Numerous subsequent private medical records are on file, none
of which reflects any back disability until the recent
injury. Subsequently reported symptomatology and/or findings
of low back pain radiating down the left lower extremity,
facet syndrome, instability of L5-S1, residuals of L5
compression fracture, mechanical back strain, back
tenderness, failed back syndrome, and lumbar paraspinal
tenderness have been medically attributed to the December
1988 injury (post-service). While in support of his claim
for VA benefits the veteran has reported on-going back
problems since service, there is no medical evidence or
opinion attributing any current back pathology to any cause
other than the 1988 injury. Additionally, the veteran
claimed workers' compensation benefits based on his back
disability. In any event, the veteran is not competent to
state an opinion as to any relationship between the current
symptomatology and inservice injury. See Espiritu v.
Derwinski, 2 Vet. App. 492 (1992).
The chronicity provision of 38 C.F.R. § 3.303(b) is
applicable where evidence, regardless of its date, shows that
a veteran had a chronic condition in service and still has
such condition. Such evidence must be medical unless it
relates to a condition as to which, under the Court's case
law, lay observation is competent. In this case the
competent evidence does not show that the veteran had a
chronic back disorder in service. If the chronicity
provision is not applicable, a claim may still be well
grounded if (1) the condition is observed during service, (2)
continuity of symptomatology is demonstrated thereafter and
(3) competent evidence relates the present condition to that
symptomatology. Savage v. Gober, 10 Vet. App. 489 (1997);
see also Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (where
the issue involves questions of medical diagnosis or an
opinion as to medical causation, competent medical evidence
is required). The medical evidence does not show that the
veteran has had chronic back symptoms since service but, even
assuming that he did, there is no medical evidence or opinion
linking his current back disorders to any such symptoms and
he is not competent to provide a nexus between the claimed
symptoms and service.
Although the veteran reported in a November 1992 statement
that he had received treatment for his knees and back from
1979 to 1988 but could not remember when or where, the
earliest treatment he reported in 1990, when he filed his
initial VA claim for a back disability, was in December 1988
In summation, without competent evidence linking the
veteran's current back disability to service, his claim is
not well grounded, and, accordingly, it must be denied.
Service Connection Bilateral Knee Disorders
The service medical records show stress fractures of the
lower legs but do not mention any knee involvement. In
December 1972, when the veteran was seen in regard to the
left knee, an X-ray was noted to be normal. In January 1973,
when the veteran complained of left knee swelling for two
days, examination was described as normal and only a bruise
was noted.
In May 1976, the veteran reportedly hurt his right knee by
dropping a case of beef on his right thigh, but an X-ray of
the right knee was within normal limits. In fact, no chronic
knee disorder was shown during the veteran's period of active
duty. During active duty for training in April 1988, he was
profiled for right knee pain and tendonitis. However, the
private medical records created in regard to his post-
service back injury reflect no knee complaints and do not
show any knee disability. On the VA examination in April
1991 the veteran stated that he had had severe knee pain
after running in April 1988; however, no abnormalities were
noted on examination and only the left knee was reported to
be painful on range of motion. Moreover, while the
impressions included degenerative joint disease of the knees,
the X-ray examination did not show any knee abnormality.
The evidence does not show a chronic knee disorder in service
and the veteran is not shown to have had a continuity of knee
symptoms since service. 38 C.F.R. § 3.303(b); Savage v.
Gober, 10 Vet. App. 489 (1997); see also Grottveit at 93.
Even if, despite the negative X-ray findings in April 1991,
he does have degenerative joint disease of the knees, it was
first shown more than 10 years following active service and
more than 3 years following his active duty for training in
1988. Additionally, there is no medical evidence or opinion
linking degenerative joint disease or any other knee
disorder, if present, to the veteran's active service or to
any active duty for training. While the veteran has
attributed current knee symptomatology to in-service injury,
he is not competent to provide a diagnosis of a current
disability or to opine that such is of service origin or
otherwise related to service. See Espiritu v. Derwinski, 2
Vet. App. 492 (1992). In the absence of competent evidence
of a right or left knee disability linked to service, the
claim for service connection is not well grounded and it must
be denied. Caluza v. Brown, 7 Vet. App. 498 (1995).
Increased Rating for Tinea Corporis
Since the appeal for a higher rating for tinea corporis was
from the same rating decision that granted service
connection, the evidence for consideration for the
appropriate rating includes that extant at the time of the
original claim for service connection and thereafter, during
the entire appeal period dating from 1991. See Fenderson v.
West, No. 96-947 (U.S. Vet. App. Jan. 20, 1999).
The service medical records show that the veteran developed
tinea corporis with somewhat fluctuating symptomatology
including scaling, cracking, raised circular lesions with
central paling, and macular/papular eruptions on various
parts of the body. Following active service, the right knee
and groin were shown to be involved and pruritus was noted.
On the VA examination in April 1991, tinea corporis was noted
to involve about 40 percent of the skin surface, including
the trunk, groin, and lower extremities. VA clinical records
confirmed this extensive involvement in August 1991,
indicating that the scaling rash was over much of the
veteran's body. He testified that the skin lesions itched,
popped open, drained, and even bled. VA outpatient treatment
records in 1992 confirm extensive scaling lesions, although
no drainage or bleeding of the lesions has been clinically
confirmed. The VA skin examination in January 1997 noted an
extensive involvement affecting the left and right inner
thighs, the groin and the buttocks. The veteran complained
of the rash being pruritic. Although he was noted to have a
scar and telangiectasis on the face, the scar was opined to
be of a type consistent with a mechanical injury rather than
a pathophysiologic process and telangiectasis are not service
connected. In the past he was also noted to have
psuedofolliculitis barbae which is not service connected.
While the veteran did not exhibit exudation from tinea
corporis at the time of the January 1997 VA examination, he
indicated that the condition was worse in the spring, summer
and fall. In any event, the medical evidence is convincing
that he has exfoliation and extensive lesions. His complaint
of pruritus is consistent with the clinical evidence, and has
not been medically contraindicated. As noted, above, a 10
percent rating is warranted when there is exfoliation,
exudation or itching, involving an exposed surface or
extensive area. The next higher rating of 30 percent is
warranted for constant exudation itching, extensive lesions,
or marked disfigurement. With itching, exfoliation and
extensive lesions covering a large area of the body, it
appears that the manifestations of tinea corporis have more
nearly approximated the criteria for a 30 percent disability
evaluation, not only as of the date of the January 1997
examination but also prior thereto. Conversely, tinea
corporis is not compatible with a higher, 50 percent, rating.
There is no evidence that even during periods of exacerbation
the veteran experiences ulceration, extensive exfoliation,
crusting, systemic or nervous manifestation or exceptional
repugnance qualifying for a 50 percent disability evaluation.
Increased Rating for Bilateral Hearing Loss
The holding in Fenderson likewise applies to the veteran's
bilateral hearing loss. The evidence of the degree of
hearing loss extant at the time of the 1991 original claim
and then during the subsequent appeals period is all for
consideration.
The service medical records show that the veteran had
bilateral sensorineural hearing loss. On the initial post-
service VA audiological evaluation in April 1991 there was an
average pure tone threshold of 43 decibels in the right ear
and 46 in the left ear. Speech recognition ability was 96
percent in the right ear and 92 percent correct in the left
ear. These values correspond to numeric designations of
impaired efficiency of I, respectively. 38 C.F.R. § 4.85(a).
On Table VII, this warrants a 0 percent rating under
Diagnostic Code 6100. 38 C.F.R. § 4.85(b).
On the VA audiometric evaluation in April 1998, the average
pure tone thresholds were 50 on the right and on the left 53.
Speech recognition ability was 76 percent on the right and 92
percent on the left. The numeric designation of impaired
efficiency was IV on the right and I on the left. 38 C.F.R.
§ 4.85(a). On Table VII, this corresponds to a 0 percent
rating under Diagnostic Code 6100. 38 C.F.R. § 4.85(b).
Hence, on both the audiometric evaluations during the appeal
period, the correct disability evaluation has been 0 percent.
There is no basis shown for a higher disability evaluation
for bilateral sensorineural hearing loss. It is noted that
such a rating takes into consideration the improvement from
the use of hearing aids. 38 C.F.R. § 4.86.
Extraschedular & Fenderson Considerations
The Board does not find that consideration of an
extraschedular rating under the provisions of 38 C.F.R. §
3.321(b)(1) is in order for the assignment of higher ratings.
That regulation provides that, in exceptional circumstances,
where the schedular evaluations are found to be inadequate,
the veteran may be awarded a rating higher than that
encompassed by the schedular criteria. The evidence in this
case fails to show that the veteran's service-connected tinea
corporis and/or bilateral sensorineural hearing loss has
caused marked interference with employment, or at any time
has required frequent periods of hospitalization rendering
impractical the use of the regular schedular standards. Id.
Neither the veteran's testimony nor the medical evidence
reflects a disability picture that is not otherwise
encompassed in the diagnostic codes discussed above.
The Board concludes by noting that although the decision
herein includes consideration of the Court's decision in
Fenderson, the veteran has not been prejudiced by such
discussion. Case law provides that when the Board addresses
in its decision a question that had not been addressed by the
RO, it must consider whether the claimant has been given
adequate notice of the need to submit evidence or argument on
that question and an opportunity to submit such evidence and
argument and to address that question at a hearing, and, if
not, whether the claimant has been prejudiced thereby.
Bernard v. Brown, 4 Vet. App. 384, 392-394 (1993).
In this case, the veteran has been advised of the relevant
laws and regulations pertinent to the disabilities at issue,
he has been afforded examinations, and he has been further
afforded opportunity to present argument and evidence in
support of his claims, to include in connection with a
personal hearing. Additionally, the Board has granted a
higher rating for tinea corporis, and considered all the
appropriate medical evidence to ascertain the disabling
degrees of both tinea corporis and bilateral sensorineural
hearing loss for rating purposes. As the result of such
analysis, a higher, compensable, rating could not be
assigned. Nevertheless, the Board does not find that the
veteran has been prejudiced by these actions.
ORDER
The veteran not having submitted a well grounded claim,
service connection for a lumbar spine disorder is denied.
The veteran not having submitted a well grounded claim,
service connection for a right knee disorder is denied.
The veteran not having submitted a well grounded claim,
service connection for a left knee disorder is denied.
A 30 percent rating for tinea corporis is granted, subject to
the governing regulations applicable to the payment of
monetary benefits.
A compensable rating for high frequency hearing loss is
denied.
JANE E. SHARP
Member, Board of Veterans' Appeals
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